Citation Nr: 1520484
Decision Date: 05/13/15 Archive Date: 05/26/15
DOCKET NO. 12-22 2485 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina
THE ISSUE
Entitlement to an effective date earlier than January 8, 2009, for the service-connected status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease, to include whether February 1996 and October 2002 rating decisions denying service connection for a back disability involved clear and unmistakable error (CUE).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. Taylor, Associate Counsel
INTRODUCTION
The Veteran served on active duty from November 1991 to May 1995.
This case is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2010 by a Regional Office (RO) of the Department of Veterans Affairs (VA).
In March 2014, the Veteran testified before the undersigned in a Travel Board hearing. A copy of the hearing transcript has been associated with the electronic claims file.
The record reflects that after the March 2013 statement of the case (SOC) was issued, additional evidence has been submitted without a waiver of initial review of this evidence by the AOJ. However, as this evidence is either not relevant to the claim on appeal or is duplicative of evidence already associated with the claims file, the Board may proceed to adjudicate the claim with no prejudice to the Veteran.
This is a paperless appeal located on the Veterans Benefits Management System (VBMS). Documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or not pertinent to the present appeal.
FINDINGS OF FACT
1. In an unappealed February 1996 administrative decision, the RO denied service connection for a back disability.
2. In an unappealed March 2002 rating decision, the RO denied service connection for a back disability.
3. On January 8, 2009, the Veteran filed a petition to reopen his claim of service connection for a back disability; an August 2010 RO decision granted the claim, based in part on the receipt of additional service records pertaining to the Veteran's discharge from service due to back disability, that were associated with the record in July 2010, after the February 1996 and March 2002 rating decisions.
CONCLUSION OF LAW
An earlier effective date of May 2, 1995, is warranted for the Veteran's award of service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.156(c), 3.400 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.
Earlier Effective Date
The Veteran contends that there is clear and unmistakable error in the February 7, 1996, RO decision and the March 4, 2002, rating decision that denied service connection for a back disability. He maintains that he had back surgery while in service and was discharged from service due to his back disability. In other words, he seeks an effective date earlier than January 8, 2009, for the grant of service connection for his status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease.
Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014). For claims of entitlement to service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2014).
A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2014). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014).
Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014).
If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C.A. §§ 7104, 7105 (West 2014). If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final. See 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2014). With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400(q), (r) (2014). Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2014).
If at any time after VA issues a decision on a claim, VA receives or associates with the record relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(1). Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3).
Analysis
As noted above, service connection for the status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease was awarded in an August 2010 rating decision. A 10 percent rating was assigned, effective January 8, 2009, the date the Veteran filed his petition to reopen his claim. The Veteran has appealed the effective date for the grant of service connection. Based upon complete review of the evidence on file, and for the reasons and bases expressed immediately below, the Board finds that the Veteran is entitled to an effective date of May 2, 1995, for the grant of service connection for the status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease.
By way of background, the Veteran first filed his claim for service connection for a back disability in July 1995 - two months after his disability retirement from service. The RO denied service connection for a back disability in a February 1996 administrative decision. The Veteran did not appeal this denial, and the February 1996 RO decision became final. 38 C.F.R. §§ 3.104, 20.1103 (2014).
The Veteran filed a claim to reopen entitlement to service connection for a back disability in October 2001. The RO denied service connection for a back disability in a March 2002 rating decision. The Veteran did not appeal this denial, and the March 2002 rating decision became final. 38 C.F.R. §§ 3.104, 20.1103 (2014).
VA received the Veteran's most recent claim to reopen his previously denied service connection claim for a back disability on January 8, 2009. An August 2010 rating decision awarded service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease, based in part on "additional service treatment records," to include the March 1995 PEB determination.
The Board notes that the outcome of this appeal depends on a determination of whether all relevant service records were associated with the file at the time of the 1996 and/or 2002 decisions. In this regard, there are service treatment records in the file date stamped in July 1995, which establishes that at least some were received prior to the first denial. However, it appears that not all relevant records were of record at the time of either the February 1996 or March 2002 decisions. First, in the March 2002 rating decision, the RO noted that the Veteran's service treatment records from November 13, 1991, through May 1, 1995, were of record. The RO indicated that these service treatment records showed that the Veteran injured his back on active duty and underwent an L4-L5 discectomy in July 1994. The RO noted that in August 1994, the Veteran was evaluated by the Medical Board, the Medical Board recommended that the Veteran be referred to the PEB, and the Veteran was discharged with disability severance pay for this condition. The March 2002 rating decision does not specifically reference any specific service treatment or personnel records that were dated in 1995. Second, the record contains a PIES request dated in June 2010 for the Veteran's Medical/Physical Evaluation Board proceedings, and a subsequent June 2010 PIES response indicated that all available records had been mailed. Several 1995 service records pertaining to the Veteran's discharge due to back disability appear to have been added to the file and date stamped in July 2010. Finally, the August 2010 rating decision granting entitlement to service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease references "additional service treatment records to include a PEB." Under such circumstances, the Veteran's initial July 1995 claim for service connection need not be reopened but should have been reconsidered de novo by VA, and the date of receipt of that claim will serve as the date of claim and the earliest date for which benefits may be granted. 38 C.F.R. § 3.156(c).
As noted, there are circumstances in which an earlier effective date under 38 C.F.R. § 3.156(c) is not warranted. Such exceptions consist of service department records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or from any other official source. 38 C.F.R. § 3.156(c)(2). Here, the March 1995 service records existed at the time of the February 1996 administrative decision, and there is no indication the Veteran failed to provide sufficient information for VA to obtain the records, as the determination is part of his service treatment records. Thus, the March 1995 service records, which pertain to his separation due to back disability, are not exempt from the application of 38 C.F.R. § 3.156(c)(1) and must be reviewed in relation to a reconsideration of the initial claim, rather than in relation to an application to reopen the claim based on receipt of new and material evidence (for which provisions of 38 C.F.R. § 3.400(r) would then be applicable).
As was noted earlier, an August 2010 rating decision granted entitlement to service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease on the merits, in part on the basis of the additional service treatment record at issue. Regulations governing effective dates of awards provide that an award based entirely or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). Further governing law and regulation provide that if a claim is received within one year following separation, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). As a back disability was manifested in service, entitlement to service connection for such disease was established when the Veteran filed his initial claim. As this was within a year following his separation service, the effective date of the award of service connection is properly the day following the date of his separation from active duty. Accordingly, the proper effective date for the grant of service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease is May 2, 1995.
As a final matter, the Board notes that this appeal included a claim of CUE in the prior February 1996 and March 2002 rating decisions denying entitlement to service connection for a back disability. However, as the Board has determined that neither decision was final, and awarded an early effective date of May 2, 1995, which corresponds to the date of his receipt of his original claim, the claims of CUE are moot and need not be considered.
ORDER
An earlier effective date of May 2, 1995, is granted for the award of service connection for status post herniated nucleus pulposus resection, L4 and L5, and degenerative disc disease.
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MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs